ILLINOIS POLLUTION CONTROL BOARD

September

27,

1990

INDUSTRIAL FUELS

& RESOURCES/

ILLINOIS,

INC.,

Petitioner,

V.

)

PCB 90—53

(Landfill

Siting Review)

CITY COUNCIL OF THE CITY

OF HARVEY,

Respondent.

W. ROBERT BLAIR AND ROXANNE JOYCE, APPEARED ON BEHALF OF

PETITIONER; AND

JEAN TEMPLETON,

JAMES MONTGOMERY

& ASSOCIATES, APPEARED ON BEHALF

OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by J.

Anderson):

This matter comes before the Board on an appeal filed April

12, 1990 by Industrial Fuels and Resources/Illinois,

Inc.

(“Industrial”).

Industrial contests the March 12,

1990 decision

of the City Council of the City of Harvey (“Harvey”)

denying site

suitability approval for a new regional pollution control

facility pursuant

to Section

40.1 of the Environmental Protection

Act (“Act”)

(Ill..Rev.Stat.

Ch. lll~,par.

1040.1).

Industrial

challenges Harvey’s decision with respect

to criteria numbers

1,

2,

5,

6,

and 7 of

Section 39.2(a)

of the Act.

Harvey found

in

favor of

that Industrial regarding Criteria

3,

4 and 9 and did

not make any statement regarding Criterion

8.

Procedural History

Pursuant

to Section

39.2 of

the Act,

public hearing was

conducted by the Planning Commission of

the City of Harvey

commencing on November

29, 1989 and continued on January

4,

1990

and January 29,

1990;

Post—hearing Public Comment was received

for

30 days,

including

a supplemental filing by

Industrial on

February 27,

1990 (PCB,

R.

6).*

By Ordinance No.

2647

*

This Board’s

transcript will

be referred to as PCB,

R.

The record filed by Harvey consists of

three volumes.

Vol.

III

contains the transcripts of Harvey’s hearings, which

the Board

will refer

to as

R.

—.

The material

in Volumes

I and II will

be referred to by the sequential numbers stamped by

the City

as

000

.

The briefs will be identified separately.

115—97

---

—2—

(Ordiance), dated March 12,

1990,

the Harvey denied site location

approval

(000290).

On April 12,

1990,

Industrial

filed its

petition seeking review of

that decision.

The Board held

a

public hearing in this matter on June

12,

1990.

Industrial

filed

its brief on June

26,

1990 and Harvey filed

its brief on July 11,

1990.

Industrial’s

reply brief was

filed on July

19, 1990.

Background

Industrial’s request

is for

a $15 million

(R.

14) multi—use

facility, which will blend hazardous liquid and solid organic

wastes as well as extracting solvents from contaminated

soils,

all for off—site secondary

fuel

use;

and which will incinerate

medical waste, with off—site disposal of

the residue.

The

facility

is proposed

to ~

operated on

approximately 13.57 fenced acres located at

the northeast corner

of the intersection of Center Avenue and 167th S:reet,

in the

City of-~-Harvey, Cook County;.

Illinois.

Four structures

would be

erected,

totalling 65,500 square feet:

a combination laboratory

and office building;

a container storage warehouse;

a waste

processing building;

and a medical waste incineration building.

Ten liquid storage

tanks with

a total capacity of 170,538 gallons

would also be located on the site.

The anticipated life

of the

facility would be at least

30 years.

About

100—125 persons will

be employed.

The hazardous waste treatment facility proposed by

Industrial

is intended

to serve an area

including mainly

Illinois,

Indiana, r~isconsin,Michigan, Minnesota,

Ohio.

Some wastes determined

to be hazardous under

the Resource

Conservation and Recovery Act

(“RCRA”) may be suitable for fuel—

blending and burning as secondary fuels

by certain industries,

including cement kilns,

fertilizer manufacturers and others which

require high—temperature processing.

The industries use a

mixture of primary fuel

(oil,

natural

gas,

etc.)

and secondary

fuels

in their furnaces which must meet

rigid specifications

for

heat content and chemical constituents

to assure that their use

is economical and safe.

(000008).

Primarily due

to ignitability,

these wastes will

be classified

as hazardous under RCRA.

(000018).

Industrial would

not accept or transfer

to another

facility wastes considered

to be highly toxic,

e.g. PCB’s,

herbicides and pesticides. An extensive

list labeled

“Typical

waste Components

for Supplemental

Fuel’ an~a table of

71 RCRA

hazardous wastes

(by RCRA hazardous waste

number)

were also

submitted.

(00020—21 and 000023).

Many

of the wastes are listed

as hazardous under RCRA for

toxicity.

(000385).

Typical waste streams which may

be blended

for use as

secondary fues

include:

ii 5—99

---

—3—

resins

solvents

pharmaceuticals

ink

paint and coatings

fuel

adhesives

organic chemicals

These wastes are produced by various

industrial and

commercial

sources,

including:

manufacturers

printers

distributors

building contractors

auto repair shops

dry cleaners

service stations

retailers

(000008;

see also 000018).

Contaminated Solids

Industrial also intends

to process contaminated soils and

other solids at the Harvey facility.

The primary source of such

contaminated solids would be due

to clean-up programs related to

buried tanks which released oil and/or fuel into the soil;

the

programs include the Responsible Property Transfer Act,

the

Illinois leaking Underground Storage Tank

program, and new

regulations

for agricultural chemical facilities.

Only Illinois

is specified

in the discussion of

sources

of the contaminated

solids.

(0000012).

The Harvey facility would be capable of

eventually processing

25 tons of contaminated solids per day

using essentially a microwave-type technology.

(000012 and Pet.

Brief at

22).

Medical Wastes

The proposed facility would include an three-stage

incinerator

from Basic Engineering which would receive medical

wastes not only from hospitals, but also from clinics, dental

offices, veterinary clinics, and other related sources.

Industrial

expects increasingly more stringent legislative and

regulatory controls, and the need to replace

or upgrade on-site

incinerators, as creating

the impetus

for new off—site medical

waste incinerators, as proposed for the Harvey site.

(000010—11).

“SB172”

Public Act 82—682,

commonly known as SB172,

is codified

in

Sections 3.32,

39(c),

39.2 and 40.1 of the Act.

The

Environmental Protection Agency (Agency) cannot issue a permit

unless

the county board or municipal government first approves

the siting

request for each new regional pollution control

facility.

These decisions may be appealed

to the Pollution

Control Board,

whose authority to review the landfill site

location decisions of

local governments

is found

in Section

40.1

of the Act.

The Board’s scope of

review encompasses three

115—99

---

principal areas:

(1)

jurisdiction,

(2)

fundamental fairness

of

the local government’s site approval procedures, and (3)

the nine

statutory criteria for site location suitability.

Pursuant

to

Section 40.1(a) of the Act,

the

Board

is

to rely “exclusively on

the record before the county board or the governing body of

the

municipality”

in reviewing

the

decision below.

However, with

respect

to the

issue of fundamental fairness,

the Illinois

Supreme Court has affirmed

that the Board may look beyond the

record to avoid an unjust

or absurd result.

E&E Hauling,

Inc.

v.

PCB,

116 Ill.App.3d

587,

594,

451 N.E.2d

555

(2d Dist.

1983),

aff’d

in part 107 Ill.2d

33,

181

N.E.2d 664

(1985).

Jurisdiction

Jurisdiction

is not at

issu9

in this

c ~e.

Fundamental Fairness

Section 40.1(a)

of the Act requires

t

the county board or

local governing body must employ procedure

in reaching its

siting decision,

which are

‘fundamentally

~ir.”

Due process

considerations are an important aspect of

I

ndamental

fairness.

Administrative proceedings are governed by the

fundamental principles and requirements of due

process of

law.

Citation.

Due process

is

a

flexible

concept

and

requires

such procedural

protections

as

the

particular

situation de-

mands.

Citation.1

In

an

administrative

hearing,

due

process

is

satisfied

by proce-

dures

that

are suitable

for the nature of

the

determination

to

be

made and

that

conform

to

the

fundamental

principles

o:~

justice.

Citation.

Furthermore,

not

all

accepted

requirements

of

due process

in

the trial

of

a

case are necessary

at

an administrative hear-

ing.

Citation.

***

Due process

require-

ments

are

determined

by

balancin~ the

weight

of the individual’s interest

again~t society’s

interest

in

effective

and

efficient

govern-

mental operation.

Waste

Management

of

Illinois,

Inc.

~.

PCB,

175

I1i.App.3d

1023,

1036—37,

530 N.E.2d 6~2 (2d

Dist.

1988).

Industrial

in

its briefs

has raised an issue concerning

statements made

at Harvey’s hearings which were not

in the form

of sworn testimony.

Only Industrial’s test:~onywas sworn;

neither the testimony of Harvey’s

consultant: nor that

of

several

members of

the public who chose

to comment concerning

Industrial’s request, were sworn.

Although under some

li~_90

---

—5—

circumstances,

the unsworn testimony might result

in

fundamentally unfair procedures warranting

remand,

the Board

holds

that such

is not the case here.

The oral comments at

hearing of Harvey’s consultant did not appear

to deviate

in any

significant respect from its formal report,

and Industrial did

not at hearing challenge anyone making statements

on the basis

that they were unsworn.

Harvey clearly did not rely solely on

such comments

in reaching its decision.

The statements here may

be admitted as public comments, and not

as testimony,

and their

probative weight thereby

is

reduced accordingly.

Since no additional fundamental

fairness matters are

at

issue,

the Board may proceed

to address the statutory criteria

for site suitability.

Statutory Criteria

Section 39.2 of the Act presently outlines nine criteria for

site suitability, each of which must be satisfied if site

approval

is

to be granted.

In establishing each of

the criteria,

the applicant’s burden of proof before the local authority

is

the

preponderance of the evidence standard.

Industrial Salvage

v.

County of Marion,

PCB 83—173,

59 PCB 233,

235,

236

(August

2,

1984).

Section 39.2(a) of the Act sets forth the nine criteria

as follows:

The

county

board

of

the

county

or

the

governing

body

of

the

municipality,

as

determined

by

paragraph

(c)

of

Section

39

of

this

Act,

shall

approve

or

disapprove the

request

for local

siting

approval

for

each ne~ regional

pollution

control

facility

which

is

subject

to

such

review.

An

applicant

for

local

siting

approval

shall

submit

sufficient details describing the proposed facility

to

demonstrate

compliance,

and

local

siting

approval

shall

be

granted

only

if

the

proposed

facility meets

the following criteria:

1.

the facility

is

necessary

to accommodate

the

waste

needs

of

the

area

it

is

intended

to

serve;

2.

the

facility

is

so

designed,

located

and

proposed

to

be

operated

that

the

public

health, safety and welfare will be protected;

3.

the

facility

is

located

so

as

to

minimize

incompatibility

with

the

character

of

the

surrounding area and

to minimize

the effect on

the value of

the surrounding property;

115—101

---

—6—

4.

the facility

is

located

outside

the boundary

of

the

100

year

flood

plain

or

the

site

is

flood—proofed;

5.

the

plan

of

operations

for

the

facility

is

designed

to

minimize

the

danger

to

the

surrounding

area

from

fire,

spills,

or

other

operational accidents;

6.

the

traffic

patterns

to

or

from

the

facility

are

so

designed

as

to minimize

the

impact

on

existinc: traffic flows;

7.

if

the

facility

will

be

treating,

storing

or

disposi~

of

hazardous

waste,

an

emergency

respon~

plan

exists

for

the

facility

which

includ

notification,

containment

and

eva~~-~

ni

procedures to be-us-edin~caseo-fan

accide

~l release;

8.

the

tht

facility

is to

be

located

in

a county

where

~he

county

board

has

adopted

a

solid

waste

management

plan,

the

facility

is

consistent

with that plan; and

9.

if

the

facility

will

be

located

within

a

regulated

recharge

area,

any

applicable

requirements

specified

by

the

Board

for

such

areas have been met.

Industrial challenges Harvey’s decision with respect

to criteria

numbers

1,

2,

5,

6,

and 7,

on which grounds Harvey denied

Industrial’s app:Lication.

Standard of Review

On appeal,

t:he PCB must review each of

the challenged

criteria based upon the manifest weight of the evidence

standa:d.

This standard of raview was recently restated in

Fairview Area Cit:izens Taskforce

v.

LPCB,

144 Ill.Dec.

659,

555

N.E.2d 1184

(3d Dist.

1990)

as follows:

In

Tate,

the standard

of

review

in

a

regional

pollution

control

facility

site—location

suitability

case

was

stated:

Waste

Management

of

Illinois,

Inc.

v.

Pollution

Control

Board

(1987),

160 Ill.App.3d

434

112

Ill.Dec.

178,

513

N.E.2d

592,

decided

that

all

of

the

statutory

criteria

must

be

satisfied

in

order

for

approval

and

that

the

proper

standard

of

review

for

the

115—102

---

—7—

County

Board’s

decision

is

whether

the

decision is against the manifest weight of the

evidence,

with

the

manifest

weight

standard

being

applied

to

each

and

every

criterion.

See also City

of Rockford v. Pollution Control

Board

(1984),

125

Ill.App.3d

384

80

Ill.Dec.

650,

465 N.E.2d 996.

A

decision

is

against

the manifest

weight

of

the evidence

if the opposite result

is clearly

evident,

plain,

or

indisputable from

a

review

of

the

evidence

(Harris

v.

Day

1983,

115

Ill.App.3d

762

71

Ill.Dec.

547,

451

N.E.2d

262).

The province of

the hearing

body

is

to

weigh

the

evidence,

resolve

conflicts

in

testimony,

and

assess

the

credibility

of

the

witnesses.

A

reviewing

court

is

not

in

a

position

to

reweigh

the

evidence,

but

can

merely

determine

if

the

decision

is

against

the manifest weight

of

the evidence.

Jackson

v.

Board of

Review

of

the Department

of

Labor

(1985),

105

Ill.2d 501

(86 Il1.Dec.

500,

475

N.E.2d

879;

McKey

&

Poague,

Inc.

v.

Stackler

(1978),

63

Il1.App.3d

142

20

Ill.Dec.

130,

379 N.E.2d 1198.

Fairview Area Citizens Taskforce

v.

IPCB,

144

Ill.Dec.

at

665,

citing

Tate

v.

PCB,

188

Ill.App.3d 994,

544 N.E.2d 1176,

1195.

Thus,

the Board must affirm the decision of the local

governing body unless that decision is clearly contrary to the

manifest weight of the evidence,

regardless of whether this Board

or

the local board might have reasonably reached a different

conclusion.

See also E&E Hauling

v.

PCB,

116

Ill.App.3d 586,

451

N.E.2d 555

(2d Dist.

1983); City of

Rockford

v.

IPCB and Frink’s

Industrial Waste,

125

Ill.App.3d

384,

465 N.E.2d 996

(2d Dist.

1984); Waste Management of Illinois,

Inc.

v.

IPCB,

22 Ill.App.3d

639,

461 N.E.2d

542

(3d Dist.

1984); Steinberg

v.

Petta,

139

Ill.App.3d

503,

487 N.E.2d 1064

(1st Dist.

1985); Willowbrook

Motel

v.

PCB,

135 Ill.App.3d

343,

481 N.E.2d 1032

(1st

Dist.

1985).

It should be noted

that the Fairview court, citing Tate

v.

Illinois Pollution Control Board,

544 N.E.2d 1176,

1197

(4th

Dist.

1989));

defined

the responsibilities of

the hearing body

in

terms of weighing the evidence,

resolving conflicts

in

testimony,

and assessing

the credibility of witnesses.

Industrial’s

petition and briefs claim that petitioner’s evidence was neither

refuted,

rebutted or

impeached, citing E&E Hauling,

Inc.

v.

PCB,

116 Ill.App.3d

586,

451

N.E.2d

555

(2d Dist.

1983).

The Board

does not interpret

this case as shifting the burden of proof

to

115—103

---

—8—

the local government

body,

if this is what Industrial

is

implying.

The Board will review each of the challenged criteria

using the manifest weight of the evidence standard.

Harvey employed the technical services of Seely Stevenson

Value

& Knecht,

Engineers Planners

(“STy”),

to review and analyze

the application and data submitted by Industrial prior

to

Harvey’s reaching

its decision.

In its letter

to Harvey

of

January

4, 1990,

in its supplemental

letter of January 12,

1990,

in its testimony of 1/29/90 and

in its final report filed

by

Harvey at the 1/29/90 hearing,

STV summarized the scope of

its

review and its findings.

(000176—179),

The review was conduc:ed

by STV personnel,

including senior environmental specialists,

waste management specialists,

risk endangerment

specialist/toxicologist,

and traffic/transportation

specialists.

(See also review team qualifications

at

00020l~

-

In response

to STV’s reque~tfor more~informationin~i+-~

detailed letter

of January 14,

1990,

Industrial submitted

additional material

for STV’s

review.

(See Supplemental

Information at 000584).

On January 29,

1990, STV submitted

~:~s

summary letter and report

to the City of

Harvey, which Harvel

entered as Harvey City Council Exhibit

#1 into the record.

Harvey denied the application by Ordinance

No.

2647 dated March

12,

1990.

(000293).

The issue before the Board is whether or

not the decision of

Harvey,

finding that Industrial did not satisfy criteria

1,

2,

5,

6, and

7,

is against the manifest weight of the evidence.

The Criteria:

Section 39.2(a)

of the Act requires an applicant

to submit

“sufficient details describing the facility to demonstrate

compliance, and local siting approval shall be granted only

if

the proposed facility” meets

the nine criteria.

We first note that

the information addressing

the criteria

presented at the hearings

in most all substantive respects did

not diverge from the information also contained

in written

documents: the application by Industrial,

the questions and

concerns transmitted by STV,

the supplemental information

in

responses by Industrial;

and STy’s

final report,

with

recommendations, the latter,

as noted above, having been put into

the record as City Council

Ex.

1.

As earlier

noted, there was

some public comment

at hearing and much more in the post—hearing

comment period.

However,

in its brief Harvey singled out the

issues

raised by the “City’s expert, STy”

as sufficient

to

support

its decision.

(Res.

Brief,

p.

2).

Therefore,

the Board

will look

to the STV documents, particularly the final

reports

115—104

---

—9—

for supporting evidence as

to whether,

on

a manifest weight

basis, Harvey should or should not be affirmed.

We also note that STy’s recommendations were made from the

perspective of

its basic recommendation that Harvey grant

conditional approval only.

Part of STy’s assignment was to

assist

in developing

“facility design,

construction, development

and operational conditions/assurances.”

(000188).

In

its cover

letter

in its

final report,

STV stated,

“Based on the current

level

of available information and technical approach presented

by the applicant

to date,

it

is the opinion of STV/Seelye

Stevenson Value and Kneccht

that the facilities proposed can be

designed, constructed,

and operated

in an environmentally sound

manner utilizing state—of—the—art control

technology.”

(000192).

However,

STV recommended conditional approval so as

to

allow the applicant

to proceed with the permitting process and

yet give Harvey the “opportunity

to be involved in an ongoing

manner

in the design, permitting,

construction, and operation of

these facilities”.

(000093).

STV stated that

the

record

is

incomplete without the actual detailed design plus the proposed

environmental controls, and specifically singled out Criteria

2,

5 and

7 as being

the source of its concerns leading to the

conditional approval recommendation.

A number of STV’s

recommended conditions relate

to ongoing oversight,

including the

right

to revoke the approval at any time at Harvey’s sole

discretion.

(000093,

000094).

The Board does not construe Section 39.2

of the Act as

allowing a conditional approval that allows ongoing review such

as proposed by STy.

(See Christian County Landfill,

Inc.

v.

Christian County Board, PCB 89—92,

104 PCB

369,

(October

18,

1989)), Concerned Citizens Group v.

County of Marion,

PCB 85—97,

66 PCB 423

(November

21,

1985)).

We also note

that,

while an

approving county or municipality may elect

to defer to

the

Agency’s permit process the detailed design and other data

considerations,

(see Tate

v.

Illinois Pollution Control Board and

Macon County,

544 N.E.2d 1176

(4th Dist.

1989)), the appellate

courts also have clearly held that the county or municipality is

not required

to do so,

at least where Criterion

2

is concerned.

(Cite

E

& E Hauling etc.).

We finally note that

Industrial has

asserted that Harvey’s consultant STV “is recommending Site

Location Approval with certain conditions” and that “STy has

found that the proposed Facility meets each of

the criterion.”

(Comments by Industrial,

at 000248).

The Board

is not persuaded

that STV’s statements have been accurately characterized by

Industrial,

or

that STV’s comments

in any event should be

construed as requiring Harvey

to approve Industrial’s

application.

The decisionmaking authority rests solely with the

local government.

A local government’s consultant

report, even

if accurately characterized

as urging approval,

is not binding on

the decisionmaker.

McLean County Disposal Company,

Inc.

v. The

115—105

---

—~-0—

County of McLean, PCB 89—108,

105 PCB 203,

207

(November

15,

1989).

Criterion

1:

the facility

is necessary

to accommodate the waste

needs of

the area

it

is intended

to serve.

Section 39.2(a)

(1)

of the Act requires Harvey to review

Industrial’s application for site approval

to ensure that

the

proposed facility

is necessary to accommodate the waste needs

of

the area it

is intended to serve.

(ill.

Rev. Stat.

1989,

ch.

111

1/2,

par.

l039.2(a)(i).)

The Board must determine whether

Harvey’s finding that

Industrial

failed to establish “need”

as

set forth

in the Act

is against the manifest weight of

the

evidence.

Organic Waste Suitable for Fuel Blending

The proposed service area for the facility,

as defined

by

Industrial,

is composed of Illinois,

Indiana, Wisconsin,

Michigan,

Minnesota, Ohio and other states which generate

candidate waste streams.

(000008).

The facility

is capable

of

processing organic wastes suitable for fuel blending,

contaminated solids and medical wastes.

(Id.)

Regarding organics

suitable for fuel blending,

Industrial’s application sets forth

the estimated gallons of suitable waste generated

in the six-

state—plus service area and the capacity for disposing of such

waste based

on existing facilities within the service area on

a

state—by—state basis.

(000009—10).

According

to Industrial,

wastes suitable for fuel blending within the six—state—plus

service area total approximately 48,500,000 gallons.

(Id. at

000009.)

Industrial noted

in its application that the data

relating to service—area generation

is based upon information on

the quantities of wastes suitable for fuel blending which may not

be totally accurate

in that

the data may include wastes which

would not be suitable for fuel blending.

(000009).

Existing

facilities,

including the proposed facility,

are capable of

treating 31,100,000 gallons

of waste

or only

64

of this waste

stream.

(000010).

Without the proposed facility,

the existing

facilities could treat only 24,850,000 gallons or

51

of

the

waste stream.

Therefore, according

to Industrial,

there

is

a

remaining need

of 17,400,000 gallons even with the proposed

facility being operational.

(000010;

R.

23—24).

Medical Waste

The evidence introduced by Industrial regarding the need for

a facility for incineration

of medical waste focuses

on waste

generated

in Illinois and existing facilities

in Illinois.

(000010—il).

Such waste

is generated by hospitals,

clinics,

dental offices, veterinary clinics, medical

research laboratories

and other medical

facilities.

(000010).

Industrial reports that

1i5—1~

---

—11—

250 hopsitals

in Illinois,

80

of which are located in the Chicago

area, generate a total

of approximately

50,000 tons of waste per

year.

(000011).

Industrial

then reports

that,

although the

“number of facilities which will

be regulated when Illinois

adopts a control program can only

be estimated,” when these

facilities do become subject

to regulation,

they will produce “an

amount

of

medical waste

equal

to the amount hospitals produce.”

(Id.)

Industrial concludes that “this

means

that 100,000

tons

of medical wastes

in Illinois will require some form of treatment

and/or disposal.”

(Id.)

In establishing need,

Industrial also

states

that only a few of the existing hospital waste

incinerators are capable of meeting air emission regulations and

that many sources will chose to use off—site facilities

rather

than upgrade or replace their incinerators.

(Id.)

Noting

that a

facility located

in Clinton, Illinois processes medical waste

generated off—site and has

a capacity of 4,250

tons per year,

Industrial makes

the following calculations:

If

it assumed that

50 percent of the estimated

quantity

of

medical

wastes

generated

in

Illinois will

require off—site

treatment,

the

need

f.or

additional

capacity

is

clear.

If

regulations

affecting

existing

incinerators

are

adopted,

50

is

a

very

conservative

assumption.

The

following

analysis

illustrates

that

the

Harvey

medical

waste

incinerator

will

only

partially

meet

the

anticipated demand:

capacity needed

50,000 tons/year

Clinton facility

—4,250 tons/year

Harvey facility

—12,000

tons/year

remaining need

33,750 tons/year

(000011).

Contaminated Solids

In support

of

its position that the proposed facility

is

needed,

Industrial asserts that

“the

processing of contaminated

solids

is expected to be driven by the cleanup of buried tanks”

which requires the “removal of solids contaminated with oil

and/or

fuel.”

(000012).

Industrial states that recently enacted

legislation and adopted regulations

“will result

in additional

quantities of contaminated solids requiring

treatment.

(Id.)

While recognizing that the “number of tank removals and property

cleanups which may result from these initiatives

is not known,”

Industrial estimates that

1,000 to 1,500 underground

tanks may be

undergoing evaluation

in Illinois.

(Id.)

Industrial also

estimates

that real estate transactions requiring disclosure of

environmental information will “range between 500

to 1,000

annually” and that this will result

in a “large number

of soil

115—107

---

-

12—

operations.”

(Id.)

Industrial

reports that the proposed facility

will

be capable of processing

25 tons of contaminated soil pr

day.

(Id.)

Based upon the above—discussed information set forth

in the

application for site approval and accompanying documents and the

testimony of

J.

Douglas Andrews, President and Principal Engineer

of Andrews Environmental Engineering which prepared the

application

(R.

16—26),

Industrial contends that

it has met

its

burden of establishing that the proposed facility

is necessary to

accommodate the waste needs

of the intended service area and that

Harvey’s decision that Industrial failed to meet this burden

is

against the manifest weight of the evidence.

In its Ordinance rejecting

dutrj.~1’sapplic~ation,Harvey

simply states that Industrial has “failed to meet its burden of

demonstrating that the facility is necessary to accommodate the

waste~needsof~--t-hearea

it is-intend~ed~to--~erve.~’

(000291)

~The~

only discussion of criterion

1 by Harvey’s consultant

is set

forth

in

a summary of STV’s

initial review of

Industrial’s

application.

(000176).

STV states that “there

is little doubt

of the need for environmentally sound facilities such as that

proposed by Industrial

on a local and regional basis”

(000177);

STy’s final

report does

not deviate from this pronouncement.

(000187—195).

In reviewing the Board’s decisions regarding site location

approval, the Appellate Court

of

Illinois has held that an

applicant need not show absolute necessity

in order

to satisfy

criterion #1.

(Clutts

v.

Beasley,

541 N.E.2d 844,

846

(5th Dist.

1989);

A.R.F.

Landfill

v.

PCB,

528 N.E.2d 390,

396

(2d Dist.

1988);

WMI

v.

PCB,

461 N.E.2d

542,

546

(3d Dist.

1984).)

The

Third Distict has construed “necessary” as connoting

a

“degree of

requirement or essentially”

and held that the applicant must show

that the facility

is “reasonably required by the waste needs of

the area intended to be served,

taking

into consideration the

waste production of the area and the waste disposal capabilities,

along with any other relevant factors.”

(WMI

v.

PCB,

461 N.E.2d

546.)

The Second District has adopted this construction of

“necessary” with the additional requirement

that the applicant

must demonstrate both an urgent need

for,

and the reasonable

convenience

of,

the new facility.

(Waste Management

v.

PCB,

530

N.E.2d 682,

689

(2d Dist.

1988).)

In its post—hearing

brief, Harvey argues

that,

regarding the

fuel blending wastes,

Industrial

“has not adequately addressed

the availability of other facilities,

the possible expansion

of

other facilities or the specific generators

of the waste to be

treated at

the

proposed

facility.”

(Res.

Brief at

8.)

According

to Harvey,

“a significant portion of the

‘need’

asserted by Industrial

comes

not just

from an area outside the

City of Harvey,

but outside

the

State of Illinois itself” and

115—108

---

—13—

that Industrial

“has sought to establish need by reviewing data

from a service area which

is

far too large

to give

a proper

picture of

the necessity for such a facility.”

(Id.)

Lastly,

Harvey contends that Industrial has

failed “to establish

a more

localized need for

this particular

facility

...

.“

(Id.)

Harvey correctly notes

that the appellate court

has upheld

the denial

of site approval where the applicant failed

to

consider the capacities

of other facilities

immediately

surrounding

the intended service area.

(A.R.F.

v.

PCB,

528

N.E.2d at

851.)

However,

in A.R.F.

the applicant admitted upon

cross—examination that

it

failed to consider

the disposal

capacities of other facilities within, and surrounding,

the

service area.

(A.R.F.

v.

PCB,

528 N.E.2d at

851.)

Here,

there

is

no evidence indicating

that,

in calculating the disposal

capacities of the six—state—pIus service area,

Industrial omitted

any existing facilities.

The Board

finds that the evidence

introduced by Industrial

relating to the fuel—blending waste

sufficiently addresses both the waste needs of the intended

service area as well as the existing disposal capacities of

facilities within that service area.

The Board

notes that it

is disturbed

by Harvey’s attempt

to

support its determination on the “need criterion”

by arguing that

the area intended

to be served is

“too large”,

that a significant

portion of the

“need” comes

not just from an area outside of

Harvey, but outside of Illinois and that Industrial failed to

establish a more “localized need”

for the proposed facility.

(Res. Brief at

8.)

The Board has recognized that Section

39.2(a)(l)

of the Act “does

not say

‘local area’,

or make any

implication that the geographical area of service is limited.”

(Fairview Area Citizens Task Force

v. Village of Fairview,

PCB

89—33 at

14

(June

22,

1989).)

Furthermore,

it

is the applicant

who defines the intended service area,

not the local decision—

making body.

(See,

Metropolitan Waste Systems,

Inc.

v. City

Of

Marseilles, PCB 89—121 Supplemental Opinion at

4

(December

6,

1989.)

According to the plain language of Section 39.2(a)(1),

any assessment of need must be done

in the context of the

intended service area as proposed by the applicant.

(Id.)

Harvey’s contention that,

“depending on how one draws such a

service area,

one could almost always provide evidence” of need

is erroneous.

An applicant who proposes a large or

heavily

populated service area still has the burden of establishing need

based upon a consideration of such relevant factors

as

the

existence of other disposal sites,

expansion of current

facilities and changes

in

refuse generation.

Hence,

a

larger

intended service area will arguably impose

a greater

burden on

the applicant

in terms

of the amount and type of evidence needed

to be presented to establish “need.”

Therefore, any attempt

by

Harvey

to find that Industrial failed

to meet

its burden of

establishing “need” on the basis redefining

the intended service

area

is misplaced.

115—109

---

—14—

Although the Board disagrees with Harvey’s arguments

relating

to the fuel--blending waste,

it does find merit

in

arguments raised by Harvey concerning the estimates relied upon

by Industrial

to support the “need”

for treatment

of medical

waste.

Industrial’s data

with

respect

to the “need”

to

treat

medical waste

is based upon

a

series of assumptions.

(000011).

Initially,

Industrial assumes that regulations governing

hospitals’

treatment of medical wastes will be expanded to

include other classes

of medical

facilities.

Secondly,

Industrial assumes that incineration

is the sole method of

treating medical waste and ignores the viability of sterilization

and chemical treatment.

Thirdly,

Industrial assumes

that

anticipated stricter incinerator regulations may induce hospitals

currently treating waste on—sire

to treat their medical waste

off—site.

(00000—11)

Thus1~fi.~“need”~f

roff-~-sits~

treatment~--is

more

in the nature ot conjectu

based on the limited data

available and minimizing

the

C

on

of on-site incineration.

Harvey raised no arguments ~

nh

the

need

fortremt~Of~

contaminated soil.

The Board recognizes that

~he evidence indicates that the

proposed incinerator

is indeed

~mpressive and that

the superior

quality of

the incinerator

might attract

large numbers of

generators.

The Board does not dispute that

Industrial’s

business judgment may prove

to be correct insofar as the medical

waste market will expand and insofar as Industrial’s

incinerator’s design and operation will give

it

a competitive

edge.

However,

the appellate court has construed the term

“necessary” as set forth

in criterion

1 as

requiring

a greater

showing.

(Waste Management

v.

PCB,

530 N.E.2d at

689; A.R.F.

Landfill

v. PCB,

528 N.E.2d

at

396;

WMI v.

PCB,

461 N.E.2d at

546.)

The Board

finds that

such speculative data

is insufficient

to establish the “degree of essentially”

(WMI

v.

PCB,

461 N.E.2d

at

546) required for an applicant

to meet its burden of

showing

that the proposed facility

is necessary to accommodate the waste

needs

of

the area intended to

be

served.

(See e.g.,

Tate

V.

Illinois Pollution Control Board and Macon County,

544 N.E.2d

1176

(4th Dist.

1989).)

Therefore,

the Board concludes that

Harvey’s determination that Indsstriai failed to meet its burden

of proof

on criterion

1

is

not

against the manifest weight

of the

evidence.

Criterion

2:

the

facility

is

s~designed,

located

and

proposed

to be operated that

the public ~ealth, safety and welfare

will

be

protected.

Harvey,

in

its Ordinance

denying

the

application

for

failure

to meet this criterion,

added

that

“The

design

and

operational

information supplied by

Industrial Fuels

is wholly inadequate

to

enable the Council

to determine whether the facility would meet

this criterion.”

(000291—2).

I

~—i11)

---

—15--

In its application,

Industrial presents a plan of operations

to show that the public health,

safety and welfare will be

protected.

(000015, 000016—17).

Industrial also asserts that by

meeting present and anticipated more stringent local, state,

and

federal regulations as

to design, criterion

2 will be satisfied.

(000015).

Additionally,

Industrial states that “the

location

of this facility within the City of Harvey assures the

availability of adequate fire and police protection and emergency

medical services,

if needed”.

(000015).

Exhibit

5,

a

consultant’s report entitled,

“Fire Safety Design and Review” was

also presented

in connection with criterion

2.

(000015, 000107—

000136.

a.

Fuel

—

Blending and Contaminated Solids Processing

The application describes the receipt of

incoming wastes,

initially by truck only,

as follows:

Upon arrival

at

the facility,

the driver

of

a

delivery

vehicle

must

display

a

manifest

document(s).

The access

control officer will

report

the

arrival

to

the

laboratory

and

request

analytical

work.

The

appropriate

analyses will be performed and materials will

be assigned

to

a storage area(s).

(000016).

Initially twelve, but eventually

thirty,

such deliveries would

occur daily.

Industrial indicates that “wlastes

handled at this facility

will be classified as hazardous under

the characteristic of

ignitability due

to

a measured flash point

less than 140°F.”

(000018).

To assure safe processing, mixing and storage,

Industrial has specified fourteen

(14)

test parameters.

(000018).

If wastes are considered to demonstrate

characteristics

of reactivity,

they will

not be accepted.

(000019).

Industrial also states

that some such wastes,

if

accepted, would be returned.

(000028).

Some accepted wastes

could display characteristics of toxicity.

“In most cases,

the

toxicity

is due

to an EP toxic metal(s),

a common contaminant of

paint,

inks and coating waste streams.

Regulated amounts of

wastes which contain compounds considered

to highly toxic,

(PCB’s,

PEB’s,

herbicides and pesticides)

will

not

be accepted by

IFRI

Industrial

for processing or transfer

to another

facility.”

(000019).

An extensive list labeled “Typical Waste

Components

for Supplemental Fuel” and

a

table of

71 RCRA

hazardous wastes

(by RCRA hazardous waste

number) were also

submitted.

(000020—21 and 000023).

115—111

---

—16—

The waste analysis plan includes preshipment analysis of

a

waste sample before delivery to the facility.

(000025).

Sampling

practices and intended methodologies also are briefly described

in the application.

(000028—30).

Closure of

the facility

is expected to occur

in not less

than

30 years.

Closure and post—closure plans essentially call

for decontamination and removal

of all equipment, with no wastes

intended

to remain on the site.

Buildings would be

decontaminated and cleaned.

Post—closure maintenance

is

not

anticipated.

(000031—34).

b.

Medical Waste Incineration

The~medical

waste ~

respect

to criterion

2.

(000035—37).

Two incinerator units,

each

capable of processing approximately

24 tons per day, would be

equipped with pollution control devices.

All

wastes wOuld be

stored and handled within

the 80xl00

feet structure.

As with the

fuel blending

operation, drivers would present a manifest

describing the wastes

being delivered for per rianent

recordkeeping.

No radioactive wastes or hazardous wastes are

intended

to be received, and all shipments are

to be pre—

approved.

Description of the incinerator operations includes mention

of automatic shutdown;

storage capacity

of

up to

two

days

incoming waste;

cold storage;

ash removal;

and wastewater

storage,

testing

(“if

necessary”) and discharge

to the sewer

system.

Design and practices would plan

to

minimize the risk

of

odors.

Inspections would be made daily.

Personnel would be

trained in medical waste handling and safety and use of available

protective equipment.

(000036-37.).

Industrial asserts

in its petition that all informational

requests were satisfied by

its petition and subsequent

submissions.

(Pet,

at 4).

Particularly

with

regards

to the fuel

blending operation,

STy’s

letter and report

of January

29,

1990

point out areas

of information which were still unsatisfactory,

though

not necessarily permanently unsolvable.

(See Letter,

pp.

5,

6,

000192—193).

Throughout

the proceeding STV expressed its

concerns about deficiencies

in Industrial’s information

(e.g.

see

STV letters of January

4

and January

12,

1990,

000177, 000181).

After

receiving more information from Industrial,

in its

final

report STV stated that the documents are too conceptual

in nature

to recommend unconditional approval.

Upon

review of the entire

record,

the Board

finds that

Harvey’s decision that Industrial did

not satisfy criterion

2,

was not against

the manifest weight

of

the evidence.

The

application and supplemental information

raised sufficient

questions

that Harvey could reasonably decide that insufficient

11 5-11 2

---

—17—

details were submitted

to demonstrate compliance with Criterion

2.

Criterion

5:

the plan of operations for

the facility is designed

to minimize the danger

to the surrounding area from fire, spills,

arid other operational accidents.

In its Ordinance,

Harvey,

in denying on the basis of this

criterion added,

“The design and operational

information supplied

by Industrial Fuels

is wholly inadequate

to enable the Council to

determine whether the facility would meet this criterion.”

(000292)

Industrial’s application and its Exhibit

5 describe

its plan

to minimize the danger

from fire,

spills

or other accidents.

(000042 and 000107).

Industrial first discusses containers,

95

of which are expected

to be 55—gallon steel

drums.

(000044).

Industrial states that “lit

is recognized that vibration,

abrasion and other stresses during shipment may occasionally

cause a container

to fail during shipment.”

(000044).

For this

reason,

Industrial would have a special area

for emergency

transfer and maintain a supply of empty containers.

Corrosive

wastes would not be considered for acceptance.

Furthermore,

“(careful

review of analytical data to avoid the mixing of

incompatible wastes will minimize the opportunity

for creating a

mixture that would be incompatible with the containment device.”

(000044).

All incoming containers would be inspected and

handling would be by specially padded forklift attachments.

Secondary containment

to control leaks or spills would be

provided at

(1)

the truck unloading dock;

(2)

inspection and

sampling area;

(3)

container storage area;

(4) container staging

area;

(5) processing

area;

and

(6)

tank storage area.

(000045—

47).

Ten steel storage tanks with total capacity of 170,538

gallons will be located on the site.

All tanks are to be

equipped with automatic feed shut-off at

90

of

total capacity.

There are no open-top tanks.

Tanks would be periodically

inspected and given protective

paint coatings to prevent

corrosion or erosion.

(000048).

Ignitable wastes will be stored

in the tanks,

and where storage

is outdoors,

the tank will be

located at least

50 feet from the property

line.

(000054).

On—site management of the tanks contents

is described as

follows:

Material placement

or

removal

from tanks will

be

controlled

by

a

series

of

numbered

sequential

work

orders.

To

assure

the

efficiency

of

the

system

in

controlling

the

115—113

---

-18’-

quantities

of

waste

or product

in the various

tanks,

no work

order

is

to be activated until

the preceding

sequential

work

order

has

been

signed

by

the

Plant

Manager.

This

will

not

prevent

two

(or

more)

operations

in the

tank

area

from proceeding

simultaneously;

however,

it will insure that

the Plant Manager

is aware

of

each

operation

and

has

accounted

for

each.

As a practice, only one tank truck will

be unloaded

at any time.

(000049).

Additional safeguards include security measures

(security

cuards, barbed wirefence,

lpc’kphle

qate3~.warn~ngsigns

scheduled inspections

(varying from daily checks for

spills to

emptying tanks every

5 years

to check corrosion or erosion);

commun±cattons

and

fire

equ±ptrent~preventive

proceduresT~job

descriptions;

and training

(for day—to-day and emergency

situations).

(000049—59).

Job training was summarized in part,

as follows:

Job

training

will

occur

in

two phases.

The

initial

phase

will

be

conducted

without

“hands—on”

experience.

In

this

phase

the

employee

will

receive

familiarization

with

facility operations

and,

also,

with emergency

procedures

and

equipment.

In

addition,

the

employee

will

receive

instruction

in

the

preparedness and prevention procedures

for the

entire

facility

with

emphasis

on

the

area

where

the

employee’s

initial

work

station

is

located.

It

is anticipated that this phase of

the employee’s

training will

require approxi-

mately three

(3)

working days.

The

second

phase

of

each

employee’s

training

is

related

to

handling

actual

job

tasks

and

will

be

conducted

as

on-the-job

training.

There

is

a strong safety training component to

this

phase,

also.

The

employee

will

be

familiarized

with

the

techniques

of

safely

handling

the

hazardous

materials.

This

training

will

be

“hands—on”

with

supervision

and

instruction from

the foreman or supervisor

in

the

area.

It

is

anticipated

that

this

phase

of

the training will

last approximately

ten

(10)

working days.

(000054—55).

*

*

*

*

1i5-11~

---

—19—

All

training

policies

as

well

as

personnel

records related to dates,

type of training and

extent

of

training

will

be

maintained

on

a

current basis at

the site.

Not later than six

(6)

months

after

employment

or

assignment

to

the facility,

or

assignment

to

a new position

within the facility an employee shall complete

all

training

required

for

his/her

position.

No

employee

shall

work

in

an

unsupervised

position

until

they

have

completed

the

training requirements.

(000059).

STy’s January 12,

1990 letter,

expressed its concern

in this

area as follows:

“The geologic setting,

(i.e., dolomite) which

warrants consideration due

to the potential

for groundwater

contamination from s1oppy housekeeping or accidental spills,

is

not addressed.

Should groundwater contamination occur

due

to

accidental release, remediation would be difficult due to the

area’s geology.”

(000187).

Furthermore, details on spill

containment systems were considered lacking.

(000184).

More

details were also needed on the list of wastes and their

concentrations,

fire protection systems,

training,

and spill

response.

(000184—185).

The January 29,

1990 report

by STV observes that accidental

spills provide

the greatest risk

of harm to groundwater and

surface water resources.

Additionally,

“any groundwater

contamination is the dolomite geology aquifer will

be

a difficult

remediation effort.”

(000191).

The potential adverse impact can

be minimized but “sipill

prevention practices must

be diligently

adhered to by the applicant throughout

the operating life of

these facilities.”

(000191).

In spite of Industrial’s responses,

and although STV states

that

“the facility proposed can be

designed, constructed, and operated in an environmentally sound

manner utilizing state—of—the-art

control technology.”

(letter

January

29,

1990,

000192, 000193).

This was one of

the three

criteria where the information presented was considered

too

conceptual

in nature

for STV to recommend unconditional approval.

Based on the record before

it,

Harvey could reasonably

conclude

that Industrial did not carry its burden with respect

to

criteria

5.

Questions about

fire safety systems,

spill

prevention and containment and training considerations could

persist after review of Industrial’s submission.

The Board finds

that Harvey’s decision is not

therefore against the manifest

weight of the evidence concerning the danger

from

fire,

spills,

and other operational

accidents.

That another decision could

have been reached does not warrant reversal by

the Board.

115—115

---

—20—

We note that Harvey,

in its brief,

addressed together

Criteria

2,

5 and

7.

In a certain sense,

the concerns of Harvey

were similar

for all three criteria as regards to the lack of

certain details.

Harvey was concerned,

for example, about

the

lack of agreements with hospitals and fire departments,

of enough

specificity regarding training of Industrial’s own staff as well

as the municipal departments.

(City Br.

p. 10—11).

In response,

Industrial argues that the evidence earlier submitted was

massive,

and that the extra detail submitted at the last hearing,

on January 29, 1989 could not have been considered by STV (STV’s

final draft was submitted at

the same hearing).

Industrial

argues that

it

is premature to take the time of the respective

agencies and the hospital

to execute the coordination and service

agreements until approval has been given,

noting

that “There

is

.inore

thanampJ~etixae~to

work ou~t~

~

approval and before

a Development Permit

is issued by the IEPA”.

(Pet. Reply Br.

P.

7).

While arguably under

other circumstances one might conclude

that Harvey was being unreasonable, here

we

are talking about

a

facility that will be handling materials that are hazardous

because

of their ignitability, and that additionally an

unexpected spill

could present quite

a threat

to the groundwater,

particularly because of the toxic characteristics

of some of the

materials and the site geology.

Although Harvey gets its

drinking water from Lake Michigan, STV notes that,

although there

are no public water supplies,

there are a number

of groundwater

users near the site, presumably

for industrial process purposes

(the record

is not clear

whether any water

is used for drinking);

the data

is based on well inventories from the Illinois State

Geological and Water Surveys.

(000189).

That Harvey would not

want

to approve without having unusual detail

under Criterion

5

beforehand,

including agreements,

is not unreasonable based on

the evidence

in this record.

Criterion 6:

the traffic patterns

to or from the facility are so

designed as to minimize the

impact on existing traffic flows.

In its Ordinance, Harvey,

in denying on the basis of this

criterion added,

“Industrial Fuels has

failed to meet its burden

of demonstrating

a specific traffic pattern which would

be

utilized by vehicles entering and exiting the facility so as

to

minimize the impact on existing traffic

flow.

The design and

operational information supplied by Industrial Fuels

is wholly

inadequate

to enable the Council

to

determine whether the

facility would meet this criterion.”

(000292).

Industrial engaged a consultant,

Barton—Aschman Associates,

Inc.,

to analyze

the traffic

impact of the proposed facility.

Their report was attached as Exhibit

6.

(000137).

115—116

---

—21—

The proposed site

is located at

the northeast quandrant of

the intersection of Center Avenue and 167th Street in Harvey.

The study considered present traffic counts and anticipated

truck

and car traffic for the proposed operations.

Truck access would

be via Center Avenue,

a two—lane north—south

roadway,

with a 45

mph posted speed limit.

Automobiles would access the facility

via 167th Street,

a two—lane east—west roadway with

a posted

speed limit of

25 mph.

Including these two streets,

the

pertinent

roadways are:

North—South

Center Street

—

West boundary of site;

2

lanes;

45 mph

Lathrop Street

—

East of site;

2

lanes;

25 mph

Halsted Street

—

East of

site;

4 lanes;

25 mph

East-West

167th Street

—

South boundary of site;

2 lanes;

25 mph

159th Street

—

North of

site;

2

lanes;

40 mph

171st Street

—

South of

site;

2

lanes;

30 mph

In general,

Industrial’s consultant found traffic impacts

to

be minimal.

Roadway capacities were analyzed using procedures

specified in the 1985 Highway Capacity Manual.

Operating levels

of service

(LOS),

defined

in terms of the average delay per

vehicle, were evaluated.

LOS A is the most favorable,

representing delays of less

than 5.0 seconds per vehicle.

LOS

F

is the worst measure of intersection performance, with delays

greater than 60.0 seconds per vehicle.

The report provided the

following analysis of existing traffic conditions:

A.M.

P.M.

Halsted and 167th Streets

B+

Halsted and 171st Streets

C

E

The report suggested certain improvements to upgrade

existing conditions:

To obtain LOS E+ during

the evening peak hour

at

Halsted

and

171st

Streets

requires

minor

improvements.

These

include

restriping

the

east

and

west

approaches

to

create

two

lanes

each

—

one

lane

for

left—turning vehicles and

a

second

lane

for

through

and

right—turning

vehicles.

In

addition,

a

left—turn

arrow

should

be

installed

at

the intersection

of

Halsted

and

167th

Streets

for

north

—

and

southbound

traffic.

These minor improvements will ensure

optimum

operating

efficiency

under

existing

conditions.

(000142).

115—117

---

—22—

The report notes

that accidents were higher

than average for

the three years from January 1985

through December

1987.

Sixty—

six to seventy—eight

(66-78)

percent of the accidents were due

to turning movements or

rear—end collisions.

An exclusive left—

tturn phase

at the intersection

would

greatly reduce potential.

accidents.

However,

the LOS would diminish from B+

to C+ during

the morning and evening peak periods.

Based on traffic information

from

the applicant’s South

Bend,

Indiana facility

(37 averaqe daily

truck

trips),

the

following LOS was projected.

The projection includes accident

mitigation measures,

but does not

include any other possible

property development.

A.M.

P.M.

Haisted and 167th Streets

0+

C+

Halsted and 171st Streets

0+

Industrial’s consultant condo

d that the intersections

would operate

at satisfactory levels

of service, with LOS

dropping not more than one level

lo:

r.

Roadway improvements

would not be required.

(000148).

The consultant also reviewed

the

site access points

(entrances/exits).

The truck access point on Center Avenue

places the truck access approximately 160

feet north of the

southern property line.

Employee access would be

via 167th

Street with two separate locations,

one

for

ingress and one

for

egress.

A single driveway would also be acceptable according

to

the consultant.

Overall,

the consultant

found

:~ietraffic impact and site

access safety to be satisfactory.

Additional traffic generated

by the facility was not found

to cause

a significant impact and

no roadway improvements were believed

to

be necessary.

STV initially found

the traffic

impact evaluation to be

incomplete at the time of STV’s

January

4,

1990 letter.

Traffic

from the medical waste incinerator

had

not been addressed and the

study was based on the South Bend

facility

and not on the

proposed operations.

(000177—178).

:~TVsJanuary

12,

1990 letter

requested additional information.

Responding

to STV’s requests

fo~

information (000182),

Industrial’s supplemental information

stated that trucks

for

the

incineration process would total

2

:o

30

trips per day

(2—3

vehicles during peak times).

Indust;:ial’s consultant expected no

change

in LOS due to factoring

in the incinerator

traffic.

In the final report of Januar~i

29,

1990, STV concluded

that:

The

traffic

impact

analysis

conducted

by

Barton—Aschman

Associates,

Inc.

for

the

1

1

;~I

1

2

---

—23—

proposed

Industrial

Fuels and Resources

(IFR)

facility

concludes

that

the traffic generated

by

this

facility will have minimal

impact

on

the

surrounding

streets

and

therefore,

no

roadway

improvements

are

required

to

accommodate site—generated traffic.

(000218).

In the final

letter and report of January

29,

1990,

STy concluded

that “overall,

traffic impacts are felt to be minimal on the

existing transportation system.”

Rec.

at 000192.

STV concurred with Industrial except

for

two particular

aspects of the applicant’s traffic report:

1.

171st

Street

The

existing

intersection

of

171st Street and

Haisted

operates

at

a

low

level

of

service,

particularly

during

the

evening

peak

hour.

This

situation

is

exacerbated

by

the

sharp

curve

in 171st Street

just west of Halsted and

the

traffic

to

and

from

the

Holiday

Inn

at

this

location.

Even

with

the

restriping

of

the east and west approaches

to create a

left

turn

lane,

it

is

not

anticipated

that

there

would

be

any

substantial

improvement

at

this

location.

Without

major

geometric

improvements

on 171st

Street,

especially

between

Center

Avenue

and

Haisted,

it

is

not

recommended

that

trucks

utilize

this

street

in gaining

access

to

the

site.

Alternate routes should be investigated

for

the

truck

traffic

coming

from the

south.

Streets

along

residential

areas

should

be

avoided.

A possible alternate would be

159th

Street.

Since

the

majority

of

the

truck

traffic

from

the

south

is

coming

on

the Tn-

State Tollway

(1—294) and with the advent of

a

full

interchange

being

proposed

at

159th

Street and

1—294,

it would

be feasible to use

this

interchange

to

exit

at

159th

Street,

travel

east

on

159th

Street

and

south

on

Center

Avenue

to

approach

the

site.

150th

(sic)

Street

is

a

2—lane

state

route

and

is

designed

to

accommodate

truck

traffic.

If

this

alternative

becomes

viable,

the

inter-

section

of

Center

Avenue

with

159th

Street

will

have

to

be

reanalyzed

to

determine

the

need

for

improvements.

2.

Site Access

115—1 19

---

—24—

The

truck

access

drive

is

to

be

located

on

Center

Avenue.

The

Barton—Aschman

study

recommends providing

a right—turn lane for in-

bound

truck

traffic

approaching

from

the

south.

STV

supports

this

recommendation,

however,

if

all

truck

traffic

approached

the

site

from

the

north

(159th

Street/Center

Avenue

access)

then

this

lane

would

not

be

needed.

In lieu of

that,

we

recommend a

left

turn

lane

be

provided

for

the

trucks

turning

into

the

facility

from Center

Avenue.

This

will

reduce

the

potential

for

rear—end

accidents.

A

50

foot

storage

bay

and

a

100

foot taper should be provided as

a minimum.

Employee

traffic

turning

right

or

left

from

167th

Street

into

the

facility

will

increase

the

potential

for

rear-end

accidents.

To

alleviate

this

we

recommend

widening

167th

Street

between

Lathrop

Avenue

and

Center

Avenue

if

feasible,

to

accommodate

the

additional

traffic

and allow

for

the

turning

movements

into

the

proposed

facility without

impending the through traffic on 167th Street.

(000219).

It

is

important

to review this record from

the perspective

of

the actual wording of Criterion

6, particularly insofar

as

it

requires the applicant

to minimize its impact on existing

traffic

flows.

In its brief, Harvey raised a number of issues where

it

asserted Industrial’s traffic evaluation was incomplete.

(Res.

Brief

p. 3,4~

However,

by the January

29 meeting,

those

issues

raised had been responded to.

The question then is whether,

on a

manifest weight basis,

Industrial’s proposal was sufficient

to

meet Criterion

6.

We believe

it

was.

In the first instance,

the

evidence shows that,

after careful analysis of Industrial’s

evaluation by Harvey’s expert,

STy,

the expert agreed with

Industrial that the

impact of the facility on

existing conditions

was considered minimal.

STV also concurred with Industrial’s

analysis except

in the

two

areas quoted earlier.

However,

STy’

concerns, and

its proposed alternatives relied on prospective

changes

in traffic flows,

not on minimizing impact on existing

flows.

Regarding

171st Street,

STV’s alternate would require that

traffic instead would come into

the facility from 159th Street on

the north.

STV relies

on the completion of

a proposed full

interchange at

159th Street and the Tn—State Tollway

(1—294);

this change

would

allow most of

the truck traffic, which comes

from the south on the Tn—State,

to travel east on 159th Street

to Center and then south

to the facility.

STV then states that

115—120

---

—25—

the 159th Street and Center Avenue intersection will need

analysis as

to whether improvements will be required.

It

is

clear

STV’s recommendation is dependent on

a wholly prospective

series of events that would also involve

a change

in the existing

traffic flows.

Thus,

it would not be reasonable

for Harvey

to

rely on this in denying Industrial’s proposal.

Regarding Site Access,

STV supports Industrial’s proposed

right-turn lane for truck traffic in—bound from the south.

However,

if all truck traffic were

to approach from the north

159/Center Street access,

then STV believes that the lane would

not be needed.

Instead,

a left turn lane

is

recommended.

It

is

clear

that this recommendation also relies on the prospective

change in the existing. traffic flows,

and thus cannot be relied

upon as a reason for denial.

Finally,

STV recommends widening 167th Street between Latrop

and Center Avenues

if feasible,

so as

to reduce the potential for

rear—end accidents due to the increased employee use.

Industrial

disagreed, noting that the small added volume of vehicles during

peak hour flows on 167th does not warrant such a

remedy,

particularly given its proposed left turn light.

STV does not

explain what

it means by “if feasible”.

At the very least STV is

suggesting

that its option

is hypothetical

insofar as

it saw

impediments to implementing

its recommendation.

Even apart from

the “if feasible” question,

we do not construe Criterion

6 as

requiring an applicant

to improve all traffic problems generally,

which this suggestion seems

to imply.

After

reviewing

the evidence in the record, the Board

finds,

on~a manifest weight basis,

that Harvey could not have reasonably

concluded that

Industrial had not met

the Criterion

6

requirements for minimizing its

impacts on existing traffic

flows.

Harvey

is therefore reversed insofar as Criterion

6

formed the basis for

its denial.

Criterion

7:

if the facility will

be treating, storing or

disposing of hazardous waste, an emergency response plan exists

for the facility which includes notification, containment and

evacuation procedures

to be used

in case of

an accidental

release.

Harvey,

in citing this criteria

in

its Ordinance as the

basis for its denial,

also added,

“The emergency response plan

presented was only

in general terms and the information supplied

by Industrial

Fuels

is wholly

inadequate to enable

the Council

to

determine whether

the facility would

meet this criterion.”

(000292).

Criterion

7 requires that an emergency response plan exist

for any facility which will treat,

store,

or dispose of hazardous

wastes.

Industrial’s facility will be

involved

in each of

these

activities.

(000063).

To satisfy

this requirement Industrial

115—121

---

—26—

submitted a plan which includes assigning primary responsibility

for emergency response

to the Plant Manager and Assistant Plant

Manager; providing

for communications by voice and air horn

signals; providing emergency switches; providing for notification

for outside assistance; maintaining records

of wastes

in storage

and in process; acknowledging

the possibility of the need

for

off—site evacuation;

installing a fire safety system;

constructing secondary containment

to hold 10

of wastes

in the

event of releases/leaks;

instituting

inspection and materials

handling procedures;

training personnel;

and planning to enter

coordination agreements with local

fire and police departments,

emergency services and disaster agency, and at least

one

hospital.

Industrial would also plan to submit a preliminary

report

to management within

7

days of an emergency

incident and

submit

a

final—r-epo-r-t-to government

ag-~-n-cies--wd~-tA~-i-n—4-5—-4ays,

or

sooner

if required.

(000063—68).

Industrial also submitted its

Exhibit

7,

a map showing the location of police,

fire,

and

hospital services.

Notification, which is required to be part of

the emergency

response plan,

involves both on—site notification of employees

and off—site notification

for emergency assistance.

This was

discussed by Industrial as follows:

The system for

immediately

notifying on—site

personnel of emergency conditions has built

in

redundancy.

The facility will have

a two way

voice

communication system

linking

the office

with

all

areas

where

wastes

are

stored,

processed

and/or

hauled.

There

is

also

a

system

of

emergency

switches.

These

systems

could be damaged or rendered inoperable due

to

power

failure

or

damage

in

emergency

conditions.

In

addition

to

these

systems,

there will be

a

system of compressed air horn

signals

to

notify

and

instruct

on—site

personnel.

*

*

*

*

The Emergency

Coordinator

will

be immediately

informed

of

the

emergency

and

a

preliminary

assessment

of

the

nature

of

the

emergency.

If,

in

the

judgment

of

the

Emergency

Coordinator,

there

is

no

hazard

in

making

a

further,

personal

assessment

of

the

conditions,

he may elect

to delay notification

for

outside

assistance

until

reviewing

the

threat

at

first—hand.

If

the

nature

of

the

problem

can

be

assessed

sufficiently,

or

if

the

nature

and/or

magnitude

of

the

threat

makes outside assistance necessary,

the

115—122

---

__)

—

Emergency Coordinator will summon the required

services.

(000064—65)

Containment of spills

or leaks,

which

is also discussed

elsewhere

in the application, was discussed briefly at pages

(000066—67).

Evacuation procedures were not described

in any detail.

However,

the following comments were made concerning evacuation:

The site location

is

removed

from residential

areas

which

should

make

the

need

for

evacuation

off—site

areas

unlikely.

However,

under

some

circumstances

the

fumes

and/or

smoke from

a

fire at

the

facility

could make

off—site

evacuation

a

prudent

step.

If

conditions

develop

so

that evacuation

of

the

facility

and/or

off—site

area

becomes

necessary,

the Emergency Coordinator will give

assistance

to

the local

emergency services

in

making

a

decision

and

will

cooperate

in

providing notification and instruction to the

affected persons.

*

*

*

*

Facility

personnel

will

be

instructed

in

the

proper response to emergency conditions.

If a

condition

requiring

evacuation

is

discovered

and

the

signal

given,

all

personnel

will

immediately

move

to

the

evacuation

assembly

area.

Only

such

tasks

as

are

necessary

to

minimize hazards

to public

health,

safety and

property

damage

will

be

undertaken

prior

to

evacuating

the premises.

Area monitors

will

account

for

personnel

from each

area

of

the

facility.

If persons are unaccounted for; and

only

if

it

is

safe

to

re—enter

the

facility,

as determined by the Emergency Coordinator;

or

other

responsible

emergency

services

personnel, should rescue effotts be undertaken

by

persons

trained

and

equipped

to

perform

rescue operations.

(000065 and

66).

In its January

29,

1990 letter, STV reported that

“chemical

spills,

fires,

explosions,

loss of electric power,

and the handling of

chemicals at the IFRI

Industrial

facility

will present hazards

to workers,

nearby residents,

visitors and

equipment.”

(000217).

STV cautioned that “explosions,

115—123

---

—28—

particularly

in processing solvents have occurred at other

facilities and must be addressed.”

(000218).

(emphasis added).

For

the reasons noted in our cornmenfs regarding Criterion

5,

it would not be unreasonable

for Harvey

to find that Industrial

did not satisfy Criterion 7’s requirement

that “an emergency

response plan exists

for the facility which includes

notification, containment and evacuation procedures to

be used

in

case of an accidental

release.”

Section 39.2(a)(7)

of

the Act.

The

Board finds

that Harvey’s decision,

that Industrial failed

to

submit adequate information regarding criterion 7,

was not

against

the manifest weight of

the evidence.

As industrial

stated in its application,

“since

virtually all materials

delivered to the facility are ignitable, any emergency, ~:1ether

~i-~-~xpiosion~or

spill,

has the potenti~a1for•escalati:

into a

life—threatening episode.”

(000065).

This being

the case,

the

lack of detail

in the description

of emergency response plans,

particularly with

respect to notification add evacuation,

supports denial of the application with respect to criteria

7.

Harvey could have reasonably concluded that the conceptual plans

for responding

to an emergency would not appear adequate to

protect workers,

the residents

as near as 700 feet away, other

area workers, and the occupants of the Holmes School which

is

approximately

6 blocks north and

2 blocks west

of the site.

As

Industrial observes,

fumes could require area evacuation,

and

Harvey could reasonably conclude that the emergency response plan

was inadequate

in this, and other

respects.

Conclus ion

For the above—stated reasons,

the Board affirms the decision

of the City

of Harvey,

Illinois denying approval to

Industrial

Fuel and Resources/Illinois,

Inc.

for

a regional pollution

control

facility on the bases of the statutory requirements of

Section 39.2(a)(1),

(2),

(5), and

(7)

of the Act.

The

Board

reverses Harvey on Criterion

6.

The Opinion constitutes

the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The Board hereby affirms

the decision of

the City of Harvey,

Illinois, denying site location suitability approval

for

a new

regional pollution control facility.

Section

41

of the Environmental Protection Act,

:11.

Rev.

Stat.

1987,

ch. 11l~,par.

1041, provides

for appeal

of final

Orders of

the Board within 35 days.

The Rules of the Supreme

Court of Illinois establish filing requirements.

IT

IS SO ORDERED.

115—124

---

—29—

Board Members

R.

Flemal,

J.

Dumelle

‘and

M. Nardulli

dissented on the Opinion.

Board Member

J.

T.

Meyer concurred on

the Opinion.

Board Members J.

T. Meyer and M. Nardulli dissented on the

Order.

I,

Dorothy M.

Gunn,

Clerk of

the Illinois Pollution Control

Board, hereby certify

that on the

~

day of

~

1990,

the above Opinion was adopted by

a vote of

~-

,

and the

above Order was adopted by

a vote

of ~

..7.

))).

~

Dorothy M./~unn,Clerk

Illinois Pollution Control Board

115—125